|Judgments - In re P and others (AP) (Appellants) (Northern Ireland)
52. In Fretté the Strasbourg court said that the Convention did not guarantee the right to adopt as such, and that the right to respect for family life presupposed the existence of a family and did not safeguard the mere desire to found a family: para 32. In its dissenting opinion the minority said that they had no difficulty in accepting the Commissions consistently expressed opinion that article 8 of the Convention did not guarantee a right to adoption as such, and that the rejection of the applicants application for authorisation to adopt did not entail a direct interference with his rights guaranteed by article 8 of the Convention. Neither did it entail the breach of any form of positive obligation on the State to guarantee the applicant the right to respect for his private or family life: O-II 1. These points were repeated by the majority in EB, para 41. But in para 46 the Court pointed out that it was not called upon to rule whether the right to adopt, having regard to developments in the legislation in Europe and the fact that the Convention is a living instrument which must be interpreted in the light of present-day conditions, should or should not fall within the ambit of article 8 of the Convention taken alone. It was careful to point out in para 49 that that case did not concern adoption by a couple or by the same-sex partner of a biological parent, but solely adoption by a single person. That was the context for its comment that the State could not, in the application of the right that it had granted to single persons, take discriminatory measures within the meaning of article 14.
53. No case has yet reached Strasbourg on the issue of discrimination that this case raises. But I agree with Lord Hoffmann that it seems now to be not at all unlikely that if the issue in this case were to go to the Strasbourg the court would hold that the discrimination of which the appellants complain violates article 14. The decision in EB, read together with the opinion of the minority in Fretté to which it, in effect, gives its approval points strongly in favour of the view that discrimination on the grounds of marital status in this area of the law is not acceptable. By marital status I mean the condition of people who are in an enduring family relationship but are not married to each other as well as those who are married. In EB, para 91 the court drew attention to previous cases in which it had stated that, for the purposes of article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a legitimate aim or that there is no reasonable proportionality between the means employed and the aim sought to be realised. In para 95 it drew attention to the fact that undoubted personal qualities and an aptitude for bringing up children were key notions in the relevant international instruments including the draft European Convention on the Adoption of Children. I read that part of its decision as indicating that the consequences for the child cannot be left out of account in determining whether a discriminatory measure that affects children can be objectively justified and is proportionate.
54. So read, EB is consistent with the point made by the South African Constitutional Court in the case of Du Toit and Vos v Minister for Welfare and Population Development (2002) 13 BHRC 187 referred to by Lord Hoffmann. It is consistent with authority in Scotland too. In T, Petitioner 1997 SLT 724, 732B-C, the First Division of the Court of Session said:
There can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the interests of the child. Issues relating to the sexual orientation, lifestyle, race, religion or other characteristics of the parties involved must of course be taken into account as part of the circumstances. But they cannot be allowed to prevail over what is in the best interests of the child.
As Mr Lavery put in his written case for the child, where children are involved in any matter their rights are almost universally recognised as paramount. The aim sought to be realised in regulating eligibility for adoption is how best to safeguard the interests of the child. Eligibility simply opens the door to the careful and exacting process that must follow before a recommendation is made. The interests of the child require that this door be opened as widely as reasonably possible. Otherwise there will be a risk of excluding from assessment couples whose personal qualities and aptitude for child rearing are beyond question. To exclude couples who are in an enduring family relationship from this process at the outset simply on the ground that they are not married to each other would be to allow considerations favouring marriage to prevail over the best interests of the child. I do not think that this can be said to be either objectively justified or proportionate. From this it must follow that the appellants exclusion from eligibility would be incompatible with their Convention rights as it would be discriminatory.
55. I am not persuaded that extending eligibility to the appellants would give rise to practical difficulties of a kind that would make intervention by the courts inappropriate. All we would be saying is that they were to be treated, for the purposes of eligibility for adoption, as if they were married to each other. The assessment of their suitability as a couple is an entirely different matter. The facts must be examined as they are. Regard must be had to all the circumstances in deciding on any course of action, as article 9 of the 1987 Order makes clear. A major revision of the law of adoption, such as that which has taken place in Great Britain, would no doubt require much additional work to be done by way of subordinate legislation and departmental guidance. But I do not see this as being made necessary by the decision about eligibility which we are being asked to make in this case. In Bellinger v Bellinger (Lord Chancellor intervening)  2 AC 467 the House declined to recognise the acquired gender of a transsexual person for the purposes of the right to marry. But this would have represented a major change in the law with far-reaching ramifications, not the least of which was where the line was to be drawn to mark the transition from one sex to another, as Lord Nicholls of Birkenhead pointed out in paras 37-41. In my opinion the problems that would have followed from it were of a wholly different order from those which would follow from a decision that the appellants are eligible to be considered as the childs adoptive parents although they are unmarried.
56. For these reasons, and in agreement with Lord Hoffmann and Lord Mance whose opinions I have had the advantage of reading in draft and very largely too with what Baroness Hale says in her opinion, I would allow the appeal and hold that it is unlawful for the Family Division of the High Court of Justice in Northern Ireland to reject the appellants as prospective adoptive parents on the ground only that they are not married to each other.
LORD WALKER OF GESTINGTHORPE
The legislative background
57. This appeal raises important human rights issues concerning the adoption of children. These issues arise in the context of the special constitutional position of Northern Ireland, and perceived differences between social attitudes in Northern Ireland and the rest of the United Kingdom. Brenda Conlon, a principal in the Child Policy Directorate of the Northern Ireland Department of Health and Social Services and Public Safety (the Department), has deposed in her first affidavit in this matter:
The problems that face society in Northern Ireland are not always precisely the same as those that affect Great Britain. Equally social attitudes and social norms in Northern Ireland do not always match those in Great Britain.
Ms Conlon has sworn five affidavits in this matter, the first on 13 October 2004 and the most recent on 11 April 2008. Her affidavits and their exhibits have provided your Lordships with a lot of helpful background material, untendentiously presented. Her affidavits and their exhibits also cover developments which have taken place during the course of the litigation.
58. Whether differing social attitudes within parts of the United Kingdom should be reflected by different levels of protection for human rights is a large and difficult topic to which I shall have to return. But I think it may be helpful in the long run, even if it involves a fair amount of past history, to sketch the development of the law of adoption in the United Kingdom, and to cross-reference it to the changing pattern of legislative independence in Northern Ireland. This last topic is all too well known to the people of Northern Ireland, but it is necessary to go into it in a little detail in order to understand the definitions of primary legislation and subordinate legislation in section 21(1) of the Human Rights Act 1998.
59. Formal adoption was unknown in the United Kingdom until the Adoption Act 1926, which did not extend to Scotland or Northern Ireland. Only a married couple (two spouses jointly) could obtain an order for a childs adoption by more than one person. The same principle was followed in the first statute authorising adoption in Northern Ireland, the Adoption of Children Act (Northern Ireland) 1929.
60. That statute was passed at a time when laws were made for Northern Ireland, except in relation to reserved matters, by the Parliament of Northern Ireland established by the Government of Ireland Act 1920. That Act never came into force in relation to the south, but it established the Parliament of Northern Ireland, which legislated on matters within its competence until it was first prorogued in 1972 (by the Northern Ireland (Temporary Provisions) Act 1972) and then abolished in 1973 (by the Northern Ireland Constitution Act 1973). The 1972 Act vested the legislative powers of the Parliament of Northern Ireland in Her Majesty in Council (section 1(3) and Schedule, para 4). The same pattern was repeated with the Northern Ireland Assembly established by the Northern Ireland Constitution Act 1973, which was prorogued in 1974 and dissolved in 1975 under the Northern Ireland Act 1974. That Act again vested legislative powers in Her Majesty in Council (section 1(3) and Schedule, para 1). That was the statutory basis of the Adoption (Northern Ireland) Order 1987 (the Adoption Order), article 14 of which is at the heart of this appeal.
61. Direct rule from Westminster continued, with some brief intermissions which proved to be false dawns, until 2007. The Northern Ireland Act 1998 repealed the Northern Ireland (Temporary Provisions) Act 1972 and the Northern Ireland Act 1974 but provided (section 95(1)) for the continuing operation of Orders in Council made under those and similar statutes. That is how the Adoption Order has survived the repeal of its enabling statute. The Northern Ireland Assembly established by the Northern Ireland Act 1998 was briefly suspended on two occasions in 2001, and was then suspended for a much longer period, from 14 October 2002 until devolved government was restored on 8 May 2007, after a transitional period provided for in the Northern Ireland Act 2006. The Civil Partnership Act 2004, which extends to Northern Ireland (and to which I shall return shortly), was enacted during a period of direct rule.
62. During the last quarter of the last century the law of adoption was frequently considered, both by departmental and inter-departmental committees and by the Westminster Parliament. The Adoption Act 1976 (which extended to England and Wales only) consolidated changes made between 1958 and 1975. None of these changes affected the principle of joint adoption being permitted only by a married couple. Official consultation papers and White Papers reflect many other more pressing concerns, including recognising the paramount interest of the child available for adoption; questioning of the assumption that the childs interests always required complete severance of ties with the birth mother and her family; better regulation of adoption agencies; the earlier involvement of courts in the adoption process; and provisions concerned with international aspects of adoption. These concerns appear, for instance, from the White Paper Adoption: The Future (November 1993, Cm 2288) and a Cabinet Office consultation paper on adoption Prime Ministers Review: Adoption (Performance and Innovation Unit, July 2000).
63. The international dimension was (in very brief summary) covered by the European Convention on the Adoption of Children 1967 and the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. Article 6(1) of the 1967 Convention followed the principle of joint adoption only by married couples. It was necessary for the United Kingdom to make a partial denunciation of the 1967 Convention in order to enable the enactment of section 50 of the Adoption and Children Act 2002 (which, with an immaterial exception, extends to England and Wales only).
64. Secton 50 (adoption by couple) of that Act provides:
(1) An adoption order may be made on the application of a couple where both of them have attained the age of 21 years.
(2) An adoption order may be made on the application of a couple where
(a) one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and
(b) the other had attained the age of 21 years.
Section 144(4), as amended by section 79 of the Civil Partnership Act 2004, defines a couple:
In this Act, a couple means
(a) a married couple, or
(aa) two people who are civil partners of each other or
(b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.
Section 144(5) and (6) exclude closely-related persons from the scope of section 144(4).
65. These provisions were not included in the Bill as originally drafted (and published with a consultative document as long ago as March 1996). Nor were the provisions included in the Bill as originally introduced into Parliament. The substance of the amendment originated as an opposition amendment at the Third Reading in the House of Commons, and re-emerged as a group of government amendments on which the majority party permitted a free vote.
66. These provisions came into force in England and Wales in 2005. Similar provisions have been enacted in Scotland but have not yet come into force. There is a new draft European Convention on the Adoption of Children (very recently presented to the Committee of Ministers of the Council of Europe) which contains as article 7 (conditions for adoption) the following:
1.The law shall permit a child to be adopted:
(a) by two persons of different sex
(i) who are married to each other, or
(ii) where such an institution exists, have entered into a registered partnership together;
(b) by one person.
2. States are free to extend the scope of this Convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship.
So the general position throughout the Council of Europe appears to be in a transitional state. The same seems to be true under the jurisprudence of the European Court of Human Rights, as appears from the recent decisions in Fretté v France (2002) 38 EHRR 438 and EB v France (22 January 2008) discussed in the opinion of my noble and learned friend Lord Hoffmann.
67. Meanwhile the position in Northern Ireland continues (subject to the issues raised in this appeal) to be governed by article 14 of the Adoption Order (adoption by married couple):
(1) An Adoption Order shall not be made on the application of more than one person except in the circumstances specified in paragraphs (2) and (3).
(2) An Adoption Order may be made on the application of a married couple where both the husband and the wife have attained the age of 21 years.
(3) An Adoption Order may be made on the application of a married couple where
(a) the husband or the wife
(i) is the father or mother of the child; and
(ii) has attained the age of 18 years; and
(b) his or her spouse has attained the age of 21 years.
(4) An Adoption Order shall not be made on the application of a married couple unless at least one of them is domiciled in a part of the United Kingdom, or in any of the Channel Islands or in the Isle of Man.
68. In 2004 the Westminster Parliament enacted the Civil Partnership Act 2004. It is a massive piece of legislation which not only provides for the recognition of civil partnerships between same-sex couples, but also provides in great detail for their consequences in the fields of social security, property law, succession, and many other fields. It extends to England and Wales (Part 2), Scotland (Part 3) and Northern Ireland (Part 4)in each case taken together with Part 1 (consisting of a single section 1 which defines civil partnership). The Act has, it seems to me, important indirect implications for the issue before your Lordships. Discrimination between a married couple and the partners in a civil partnership could be justified only by particularly convincing and weighty reasons . . . regarding rights falling within article 8 (EB v France, para 91). Traditionally religious and social attitudes have been even less tolerant towards male and female homosexuality than towards relationships between unmarried heterosexual cohabitants. Yet paradoxically discrimination between a married couple and unmarried cohabitants may be easier to justify, under Strasbourg jurisprudence, than discrimination against a same-sex couple in a civil partnership (that at any rate is the submission made by the Department).
69. I should perhaps add, for completeness on this point, that article 15 of the Adoption Order (adoption by one person) was amended by section 203(4) of the Civil Partnership Act 2004 so as to prevent adoption by one only of the partners in a civil partnership (supplementing the prohibition on adoption by one only of a married couple). Yet there is no corresponding amendment to article 14 (adoption by a married couple). Leading counsel for the Department told your Lordships that there had been a mistake, but the point was not further explained. It is not directly relevant to the outcome of this appeal, but it will, it seems, be a point to be considered by the Northern Ireland Assembly at some time in the near future.
Human Rights Act 1998
70. I have referred to the definitions of primary legislation and subordinate legislation in section 21(1) of the Human Rights Act 1998. A limited class of Orders in Council affecting Northern Ireland are classified as primary legislation (see para (f)(ii) of that definition) but other Orders in Council affecting Northern Ireland count as subordinate legislation (see para (a)(ii) of that definition) even if their content is comparable to that of primary legislation. The Adoption Order falls within the residual class and is to be classified as subordinate legislation. The interpretative obligation in section 3 of the Human Rights Act 1998 applies to both primary and subordinate legislation, whenever enacted. But it has not been suggested to your Lordships that section 3 can be applied so as to alter the plain language of article 14 of the Adoption Order.
71. Nor has it been argued that the repeal of the Northern Ireland Act 1974 (under which the Adoption Order was made), coupled with section 95(1) of the Northern Ireland Act 1998, has had the effect of turning the Adoption Order into primary legislation, or brought it within the scope of section 6(2)(b) of the Human Rights Act 1998. Section 6(2)(b) disapplies section 6(1) where
In the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the [public] authority was acting so as to give effect to or enforce those provisions.
Adoption in Northern Ireland
72. In her first affidavit Ms Conlon, after the general observations that I have already referred to, deposed that there was what she called a chronic shortage of prospective adopters in England and Wales, with about five thousand children awaiting adoption in 2001. There was, she deposed, no such shortage in Northern Ireland. Statistics show that the traditional model of family life is strong in Northern Ireland, with fewer broken marriages and fewer children born out of wedlock. These considerations were given weight in the courts below, especially by Gillen J (in para 23 of his judgment).
73. A more detailed and rather different account of the need for adoption in Northern Ireland has emerged from the later evidence sworn by Ms Conlon in the course of this litigation (third affidavit, 1 December 2006; fourth affidavit, 1 May 2007; fifth affidavit, 11 April 2008). Her third affidavit exhibited a consultation paper, Adopting the Future issued by the Department in July 2006 (under the transitional constitutional arrangements set up by the Northern Ireland Act 2006). The consultation paper is an impressively thorough document. Under the heading Eligibility to Adopt it made the following observations:
3.36 The current eligibility criteria are problematic for the following reasons. Like other aspects of the Adoption Order, they do not necessarily reflect contemporary society and may unnecessarily restrict opportunities for children to find permanent, loving families to support them throughout their childhood and into adult life. The marriage requirement for joint adoption applications does not reflect the reality of modern life where many people in long-term relationships cannot or simply do not wish to marry.
There is then some discussion of adoption by one only of a couple, followed by:
3.38 It is important to remember, however, that adoption is primarily a service for children. There is therefore no right for any person to adopt a child. A persons eligibility to adopt under the law is only the most basic consideration for adoption agencies. The much more crucial test is the suitability of the prospective adopter to adopt a child.
There is then discussion of the need for very careful assessment of prospective adopters, followed by:
3.39 . . . Many prospective adopters approach adoption wishing to adopt a healthy baby. However, as outlined in the previous chapter, there are very few healthy babies who need adoption in Northern Ireland today. Indeed, it is a global phenomenon that the demand for the type of children usually sought by adopters does in fact exceed the availability of such children.
74. In her fourth affidavit Ms Conlon reports on the very full response to the consultation. There were over sixty responses from organisations of different types, and over one thousand from individuals. 95% of the respondents were opposed to the proposal to extend adoption to civil partners and others. The Department had carefully considered the responses, commenting,
We are aware that material was circulated in some circles, providing advice on how to respond to the consultation. This material stressed that it was not necessary to read the consultation document and the Department is concerned that, without having done so, many respondents may not have fully understood the nature of the reform being proposed. It is clear that most of the objections outlined are concerned with the ability of unmarried heterosexual or homosexual couples to parent a child. We have tried to clarify, however, that people in unmarried couples (same sex or otherwise) can already adopt in Northern Ireland but that only one partner in the relationship can become the legal parent. The other obtains parental responsibility through a less permanent legal order. The change proposed, therefore, is not to enable people in unmarried relationships to adopt where they previously could not.
Children can and have been placed with single adopters in unmarried relationships, where agencies have considered that to be in the childs best interests, under the existing legislation. We do not believe that where children would otherwise be placed in these circumstances, the law should deny them two legal parents.
The Department therefore intends to proceed to amend the legislation as proposed. The key features of the policy will be that:
*The welfare of children will be the determining consideration for any agency;
*Assessment will be the major factor in determining the suitability of any applicant; and
*There will continue to be no right for any person to adopt.